Impson v. State
| Decision Date | 04 May 1976 |
| Docket Number | 4 Div. 389 |
| Citation | 331 So.2d 837 |
| Parties | James Andrew IMPSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Gary E. Davis, Phenix City, for appellant.
William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for the State.
A jury found appellant guilty of robbery and fixed his punishment at thirty-one years and a day in the penitentiary. The court rendered judgment and pronounced sentence accordingly.
The alleged victim, Danny Clyde Wade, testified that he went to the Georgia Grill in Columbus, Georgia, about 10:30 P.M. September 27, 1974; he and defendant drank some beer there and left in defendant's automobile to go to Phenix City. After arriving in Phenix City, defendant stopped the automobile, pulled a knife with his right hand and put it on Wade's side; Wade opened the right door with his right hand and went out, and defendant followed him, and they scuffled and fought. He said he left the scene of the first scuffle, defendant caught up with him about a block and a half or two blocks away, and they had another scuffle. Wade said that when he first got out of the automobile, he had about twenty or twenty-five dollars in his shirt pocket, that in his scuffling with defendant his shirt pocket was ripped off and he did not recover the money in it. He further said that he lost his wallet in the scuffle and contents of it were scattered on the ground. He became unconscious during the last scuffle and regained consciousness in the ambulance that took him to the hospital, where he was treated for bruises.
A resident of the area of the second scuffle, Luther Boyd Tew, said that about midnight September 27--28, he was asleep, something woke him up and he heard some moaning and groaning. He looked outside and saw He called the police, who arrived in about three of five minutes. He and the policemen went to the man still on the ground and noticed that he had blood all over him and stated that his ribs were broken. The policemen radioed for an ambulance. He looked on the ground in the area where the person was lying and noticed some credit cards and 'such as that had been thrown around in the yard--identification cards and such.' He said that the man on top of Wade 'was going through his pockets at that time and he looked like he had his billfold, going through it, and when the light went on him, he threw the billfold.'
Officer Johnny Phillips testified that he answered a call to the scene of the alleged crime and while turning into Eighth Avenue toward 917 Eighth Avenue, from where he received the call, he saw a man at the corner of Eighth Avenue and the street from which he was making the turn, whom he identified as the defendant, who was afterwards arrested.
Witnesses for defendant testified that defendant remained in Georgia Grill until about 1:30 or 1:45 A.M. One of them said that Wade left the Georgia Grill about two hours before defendant. Defendant did not take the stand.
We see little basis for any substantial doubt that defendant was correctly identified by Wade and Officer Phillips. There is no basis for substantial doubt that a robbery was committed. The trial court charged the jury as to robbery and as to the crime of attempting to rob, having in mind doubtless the possibility that defendant did not succeed in taking money, or other property, from Wade. The evidence was ample to support the verdict, and the court was justified in overruling defendant's motion for a new trial.
During the interrogation by the prosecution of Danny Wade as a witness, the following occurred:
Appellant urges that the 'prejudicial viewing of photographs' is referable to a viewing, as shown by the testimony of Danny Wade, of a number of photographs in the hands of the police and that one of them was a photograph of defendant. He argues that the evidence in the case subsequently showed that the print of the photograph of defendant had his name under his picture. Other evidence, however, indicated that in identifying such photograph, Wade was not influenced in any way by the name, even though he knew that the first name of defendant was James. Negligible at the most was any chance of irreparable misidentification of defendant by Wade, who had seen defendant on about two occasions prior to the night of the alleged crime, who had been with him, drinking with him, at Georgia Grill, ridden with him in his automobile, and engaged in two scuffles or fights with him. An answer to appellant's contention in this respect is Simmons v. United States, 390 U.S. 377, 88 S.Ct. 697, 19 L.Ed.2d 1247, in part as follows:
'. . . (C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'
During the interrogation by the State of Officer Alsobrok as a witness, he said, 'We obtained photographs of Mr. Impsom from Columbus Police Department.' Defendant then asked for a hearing out of the presence of the jury and thereupon moved for a mistrial. The motion was overruled.
It was unfortunate, we think, that the witness said that the photographs were obtained from Columbus Police Department, but we cannot say that the trial court abused the discretion vested in it in overruling defendant's motion for a mistrial. The corporate limits of Columbus, Georgia, and Phenix City, Alabama, are contiguous. The events pertinent to the alleged crime took place in Columbus and in Phenix City. It would have been natural for the police of Phenix City to call upon the police of Columbus for information as to the alleged victim and the alleged robber, both of whom, it seems, lived in Columbus. That Phenix City authorities obtained photographs from Columbus authorities does not...
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